IN THE SUPREME COURT OF BANGLADESH Appellate Division Present Mr. Justice Md. Tafazzul Islam Chief Justice Mr. Justice Mohammad Fazlul Karim Mr. Justice Md. Abdul Matin Mr. Justice Bijan Kumar Das Mr. Justice Md. Muzammel Hossain Mr. Justice Surendra Kumar Sinha CIVIL PETITION FOR LEAVE TO APPEAL NOS. 1044 & 1045 OF 2009 (From the judgment and order dated 29TH August passed by the High Court Division in Writ Petition No. 6016 of 2000) Khondker Delwar Hossain, Secretary, ... Petitioner B.N.P. Party (in C.P. No. 1044/09) Munshi Ahsan Kabir and others ....Petitioners (in C.P. No. 1045/09) = Versus = Bangladesh Italian Marble Works ... Respondents Ltd., Dhaka and others (in both the cases) For the Petitioner :Mr. T. H. Khan, Senior Advocate, instructed (in C.P. No. 1044/09) by Mr. Md. Taufique Hossain, Advocate- on-Record For the Petitioners :Mr. Moudud Ahmed, Senior Advocate,(Mr. (in C.P. No. 1045/09) Imran A Siddiq with him) instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record For the Respondent No.1 :Mr. Azmalul Hossain, Senior Advocate (Mr. (in both the cases) ABM Siddiqur Rahman Khan, Advocate appearing with the leave of the Court with him), instructed by Mvi. Md. Wahidullah, Advocate-on-Record :Mr. Towfique Nawaz, Senior For the Respondent No.2 Advocate(Mohshen Rashid, Advocate with (in both the cases) him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record For the Respondent Nos.3 :Mr. Mahbubey Alam, Attorney General, and 4 (Mr. A.K.M. Zahirul Hoque, Additional (in both the cases) Attorney General, Mr. Mostafa Zaman Islam, Deputy Attorney General, Mr. Tapash Kumar Biswas, Assistant Attorney 2 General, Mr. Khandaker Diliruzzaman, Assistant Attorney General, Mr. Kashifa Hussain, Assistant Attorney General, Mr. Pratikar Chakma, Assistant Attorney General, Mr. Titas Hillol Rema, Assistant Attorney General, with him), instructed by Mr. B. Hossain, Advocate-on-Record For the Respondent No.5 :Mr. M.K. Rahman, Additional Attorney (in both the cases) General (Mr. Motaher Hossain Sazu, Deputy Attorney General, Mr. Biswajit Debnath, Deputy Attorney General, Mr. S. Rashed Jahangir, Assistant Attorney General and Mr. S.M. Nazumul Haque , Assistant Attorney General with him) instructed by Mrs. Sufia Khatun, Advocate- on-Record For the Respondent `No.6 :Mr. Murad Reza, Additional Attorney (in both the cases) General, (Ms. Fazilatunassa Bappy, Assistant Attorney General, Ms. Mahfuza Begum, Assistant Attorney General and Ms. Khairunnessa, Assistant Attorney General, instructed by Mr. Giasuddin Ahmed, Advocate-on-Record For the Respondent No.7 :Mr. Mahmudul Islam, Senior Advocate, (in both the cases) (Mr. AFM Mesbahuddin, Senior Advocate, Mr. Yusuf Hossain Humayun, Advocate, Mr. A.M. Amin Uddin, Advocate, Mr. Abdul Matin Khasru, Advocate, Mr. Sheikh Fazle Noor Tapash, Advocate, Mr. Nurul Islam Sujon, Advocate, Mr. Shahidul Karim Siddiki, Advocate, Mr. S.M. Rezaul Karim, Advocate and Mr. Momtazuddin Fakir with him), Advocate instructed by Mrs. Mahmuda Begum, Advocate-on-Record :The 19th, 21st, 26th , 27th and 28th January, Date of hearing 2010 and 1st February, 2010 J U D G M E N T MD. TAFAZZUL ISLAM, CJ:- These civil petitions arose out of the judgment and order dated 29.8.2005 passed by the High Court Division in Writ Petition No. 6016 of 2006 making the Rule absolute and declaring the Constitution (Fifth Amendment) Act, 1979, Act 1 of 1979, hereinafter referred to as the Fifth 3 Amendment, as illegal and void and allowing condonations of some of the amendments while refusing some others and also directing the Ministry of Industries, the writ respondent No.1, the proforma respondent No.3 herein, to handover the physical possession of Moon Cinema Hall, 11 Wiseghat Road, Police Station: Kotwali, Dhaka, to the writ petitioner No. 1, the respondent No.1 herein, within 60 (sixty) days. Facts, in brief, are that the respondent No.1, hereinafter referred to as the company, along with its Managing Director, filed the above writ petition stating, inter alia, that the company was registered with the Joint Stock Companies of the erstwhile East Pakistan as a private limited company in the name and style of Pak Italian Marble Work Limited and in the year 1962 it became the owner of the above Holding No.11, Wise Ghat Road, Dhaka and in the year 1964, it constructed a cinema hall known as Moon Cinema Hall; after liberation of Bangladesh, in or around the last week of December, 1971, some people taking advantage of poor law and order situation prevailing at that time, took over forcible possession of the above Moon Cinema Hall from the staffs of the company and subsequently, by notification being No.186-SI dated December 31, 1971, the management of the Moon Cinema Hall was taken over by the proforma respondent No.3 and the same was handed over to the Management Board purportedly in pursuance of the Acting President’s Order No. Sec XI/IM/35/71/17 dated December 30, 1971; then in terms of the order passed by the Department of Trade and Commerce, by an order dated 28.11.1972 passed by the Registrar Joint Stock Companies, Bangladesh, the name of the company was changed to Bangladesh Italian Marble Works Ltd.; then by Notification No. IM-XV-36/72/531 dated 15.12.1972 the respondent 4 No.3, in exercise of the powers under Article 5 of the President’s Order No. 16 of 1972, placed the Moon Cinema Hall under the disposal of Bangladesh (Freedom Fighters) Welfare Trust, the writ respondent No.3, the proforma respondent No.5 herein. Then on April 28, 1972, the company filed an application praying for release of the Moon Cinema Hall whereupon the Sub-Divisional Officer (South), Dhaka, by his order dated 1.12.1972, directed an enquiry and the directors of the company personally appeared before the Officer-in-Charge of the Abandoned Property Cell on 22.10.1973 and after enquiry the authority concerned filed an enquiry report dated 11.9.1974 with the finding that the Moon Cinema Hall was not an abandoned property and thereafter the Sub- Divisional Officer (South) Dhaka, after examining the documents, by his order dated 18.12.1974 placed the matter before the Deputy Commissioner, Dhaka and in due course the Additional Deputy Commissioner, Dhaka by his Memo dated 6.1.1975 recommended release of the said property. But by Memo dated 27.06.1975 the respondent No.3 informed the company that the Moon Cinema Hall is an abandoned property and as such cannot be released. The Company then filed an application on 17.12.1975, before the Member, Advisory Council, in-charge, Ministry of Planning and Industries, praying for release of Moon Cinema Hall but without any result. Then finding no other alternative, the company filed Writ Petition No. 67 of 1976 praying for declaration that the notification dated 31.12.1971 issued by the proforma respondent No.3 taking over Moon Cinema Hall as abandoned property under the Acting President’s Order No.1 of 1971 and its subsequent Order dated 27.6.1975 refusing to release Moon Cinema Hall are illegal and without 5 lawful authority. Only the respondent Nos. 3 and the Secretary, Ministry of Industries, the writ respondent No.2, the respondent No.4 herein, contested the Rule by filing an affidavit-in-opposition. The proforma respondent No.5 neither opposed the Rule nor filed an affidavit-in-opposition. After hearing the High Court Division, by judgment and order dated 15.6.1977, declared the impugned notification dated 31.12.1971 as illegal and directed the proforma respondent Nos. 3 and 4 to hand over the possession of Moon Cinema Hall to the company at once. Then in compliance of the above judgment of the High Court Division, the respondent No.3, by Notification No. ND/(N-1)/4(2)/72/11 Dacca dated 24.8.1977, deleted Moon Cinema Hall from the list published in the Notification dated 31.12.1971 and formally released Moon Cinema Hall in favour of the company with a direction to the respondent No.4 to hand over the physical possession of the same to the representative of the company. In due course, a Magistrate was also deputed to hand over possession of Moon Cinema Hall to the company but the possession could not be handedover because the proforma respondent No.5 refused to give up possession of Moon Cinema Hall to the company on the ground that they, against the above judgment of the High Court Division, has filed Civil Petition No. 291 of 1977 before this Division and obtained an order of stay. In the meantime Abandoned Properties (Supplementary Provisions) Regulation, 1977, hereinafter referred to as Martial Law Regulation No. VII of 1977, having been promulgated on 7.10.1977 prodiving, amongst others, annulment of the above judgement and order of the High Court Division dated 15. 6. 1977. Then the above civil petition was dismissed as not being pressed. 6 Thereafter the company made several representations to the respondent Nos.3 and 4 requesting them to hand over of the possession of the Moon Cinema Hall in their favour but the same was refused on the plea that in view of promulgation of MLR VII of 1977 the judgment and order of the High Court Division dated 15.6.1977 passed in Writ Petition No. 67 of 1976 stood annulled and so the said judgment was no longer binding upon them and the said Cinema Hall having vested in the Government, they were not legally bound to deliver the possession of the same to the Company. In the contempt proceedings, which in the meantime commenced at the instance of the company, the proforma respondents having taken similar stand, the company did not press those and those were accordingly discharged.